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Tort; automobile and truck collision. Before Judge Pharr. Fulton Superior Court. April 6, 1956.
1. The evidence adduced presented issues of fact that were for the jury, and the direction of the verdict in favor of the defendants was error.
2. The rule is well established that the plaintiff is not entitled to recover if his testimony is self-contradictory, and if that part of it which is weakest does not support the cause of action declared upon in the petition.
3. The evidence presented by the plaintiff was not self-contradictory or equivocal so as to require it to be construed most strongly against her. The depositions referred to in the opinion were taken prior to the trial of the case, and although they might tend to impeach the plaintiff's testimony they would not have the effect of requiring, as a matter of law, that her testimony be disregarded. See Swift & Co. v. Hall, 94 Ga. App. 239 (94 S. E. 2d 145). In order to require as a matter of law that a party's testimony be construed most strongly against her because it is contradictory or equivocal, it must be testimony presented by the party on the trial of the case and not testimony adduced at some other time and place which is introduced on the trial merely for the purpose of impeachment. In the present case the general demurrers filed by the defendant to the plaintiff's petition were overruled and not excepted to, and the plaintiff made out her case as laid. Therefore, a question for the jury was presented, and the trial court erred in directing a verdict for the defendants.
4. The rule referred to in headnote 2 is not to be strictly applied to the testimony of a plaintiff who, while competent to testify, is in some degree afflicted with insanity, imbecility or senility.
5. The plaintiff's testimony in this case was not so self-contradictory as to divest it of its probative value.
6. The reciprocal duty owed by an invitee and trespasser simultaneously on the property of another is that each exercise ordinary care to avoid injuring the other.
7. Ordinary care requires that the driver of a large truck not back the same from private property longitudinally over the public sidewalk without ascertaining whether the way to the rear of the vehicle is clear.
Mrs. Mattie E. Branan instituted a suit for damages against LaGrange Truck Lines, Inc., and Marvin Clayton in the Superior Court of Fulton County. Her original petition filed on February 17, 1954, was stricken by amendment on August 16, 1955, and a petition in four counts substituted in its stead. The first count showed that the LaGrange Truck Lines, Inc., was a corporation having an office and agent in Fulton County upon whom service could be made and that Marvin Clayton resided in DeKalb County. The count related that on the occasion of a collision between a tractor and trailer and the plaintiff's automobile on October 17, 1953, Clayton was operating the vehicle for the LaGrange Truck Lines, Inc., and acting within the scope of his employment; that Jonesboro Road runs generally north and south, veering slightly eastwardly and westwardly between its intersections with Margaret and Ann Streets, between which streets the collision referred to occurred; that about 11 a.m. on October 17, 1953, the plaintiff was a passenger in her own Hudson sedan automobile which was being driven in a northerly direction on Jonesboro Road by her husband, R. C. Branan, when her automobile was stopped facing in front of the property known under the present system of marking in the City of Atlanta as 1534 Jonesboro Road, S. E., which property was at the time occupied by the White Truck Lines, Inc.; that neither of the defendants had any interest therein by reason of occupancy, rental or ownership; that the plaintiff was informed by persons at the scene of the collision who are unknown to her, that her automobile was parked on the private property of the White Truck Lines at the time of the collision; that the plaintiff's automobile was parked approximately parallel with the street and alongside the defendant truck line's tractor which at the time was not in motion; that the plaintiff's automobile was stopped at about the rear of the cab of said tractor; that the tractor at the time was facing in a southerly direction parallel with the street and was approximately eight feet from the plaintiff's automobile when the automobile was brought to a stop; that in the process of being parked the plaintiff's automobile approached the tractor directly at a speed of about four miles per hour; that the defendant driver watched the plaintiff's driver approach and saw he was in the process of parking the automobile in which she was riding; that immediately upon the automobile being stopped the plaintiff alighted to the ground from the right front seat thereof and between it and the tractor; that immediately upon the plaintiff stepping to the ground, the defendant driver began backing and turning the tractor and trailer so that the rear of the tractor and the front of the trailer came in the direction of the plaintiff who was standing between them and her automobile; that the defendant driver continued to back and turn the tractor and trailer upon and against the plaintiff and her automobile, striking her and her automobile with great force; and that the impact resulted in certain physical injuries to the plaintiff, broke her eye-glasses and damaged her automobile. The count related that the plaintiff, on account of the injuries sustained by her, suffered great physical and mental pain. It also laid the damages claimed by her for pain and suffering, doctor's bills and property damage in appropriate terms. The count charged that the plaintiff's injuries and damages to her automobile were proximately caused by the negligence of the defendant driver.
The count specified the acts of negligence on the defendant driver's part that proximately caused the injuries to the plaintiff's person and damage to her property to have been: "(a) He was negligent in backing and turning said tractor and trailer into and upon petitioner after seeing the said automobile being parked in manner above described without first looking to see whether or not petitioner was in his path; (b) he was negligent generally and negligent in particular as regards this petitioner in backing and turning said truck without keeping a proper lookout; (c) he was negligent in so backing said truck without giving petitioner a warning of his intentions and giving her time to remove herself and her automobile from the path of the vehicles."
The count further alleged: "That petitioner is over 83 years of age and suffers with fading mind and memory, and is highly emotional and easily upset mentally, and because of this debility resultant of old age any excitement or anxiety so affects her mind as to cause great confusion therein and prevents her from being fully cognizant of the significance of her acts; that at the scene of the accident an employee of the White Truck Lines, being one of the witnesses aforesaid, known to defendants but unknown to petitioner, informed her that she would be paid nothing for the repair of her automobile, which upset her to the point of hysteria and to the extent that she was continually highly nervous, cried frequently and at times fell to the floor as a result of her inability to control herself; that immediately following the accident, the date of which petitioner cannot recall but which date is well known to these defendants, one W. L. Brannen called on petitioner, representing himself as agent of the defendants, and procured a statement from her as to circumstances of the accident involved; that several days subsequent to the first visit, the date of which petitioner cannot recall but which date is well known to the defendants, the said W. L. Brannen had petitioner sign a release favoring these defendants, of which plaintiff is informed by the said Brannen, believes and so alleges; that on both said visits by W. L. Brannen, petitioner was racked with pain, resultant of said injuries, to the extent that she could not rise from her bed unaided, and so racked with grief, resultant of her anxiety and the belief that she could recover nothing for the damage of her automobile, as she had been informed, as abovesaid, that she was outwardly and obviously in a highly nervous and emotional state; that on both abovesaid visits, the said W. L. Brannen, while telling petitioner she need not be nervous and scared, and seemingly trying to placate her obviously high emotional state by assuring her that he was there to help her and would help her, falsely and unconscionably aggravated petitioner's nervousness and fear by telling her that defendants informed him that she was on their property and so was not entitled to any recovery for her damages and injury to the extent that petitioner was not mentally capable of effecting a fair settlement; because of her physical and mental condition immediately above described, petitioner did not and could not seek help outside in settlement of her claim and did not herself have mind and reason equal to a clear understanding of the
nature of her claim against these defendants or the nature and consequence of her act in signing the aforesaid release; that some days subsequent to the said W. L. Brannen's second visit, the date of which is unknown to plaintiff but well known to defendants, plaintiff received a draft from defendant's insurance company in the amount of $125; the abovesaid mental and physical condition rendering plaintiff incapable of effecting a fair settlement of her claim, and understanding its nature and consequences of her act in signing said release was obvious to the said W. L. Brannen and known to him, as shown by his later admission to plaintiff, the date of which she cannot recall but which is well known to defendants, that he was aware of her condition of incapacity at the time, and that it was a mistake on his part to have had her sign laid release, and the said Brannen, because of plaintiff's mental condition, so known to him, advised plaintiff to see her attorney before cashing a draft she would receive, which advice she followed, and through which attorney plaintiff tendered said draft to defendants, demanding return of said release, which they declined, and said tender was made continuous, and plaintiff tenders same into this court."
Counts three and four were similar to count one, except that both of those counts alleged that the plaintiff alighted from her automobile and was injured on the public sidewalk instead of on the premises of the White Truck Lines as alleged in count one. Count four, unlike counts one and three, contains the same allegations as count two in regard to the manner in which the claims adjuster obtained the release and as to the representation made by him that the draft would not constitute satisfaction of the plaintiff's claim for damages unless it was presented by her for payment or, as expressed in the language of the petition, "was cashed."
The plaintiff testified in her own behalf substantially as follows: "My name is Mattie E. Branan. I was involved in a truck accident in October 1953. The accident happened in the following manner: We headed to Atlanta and when we got to this White Truck Line parking lot this colored man was right out at the edge of the sidewalk, looked to me he was going out in the street but he was sitting still and looking right at me and we passed him. There was a telephone post there just pretty close to him; we went around that post and drove up on the sidewalk, partly on the sidewalk, and I got out of the car. Just as I stepped down on the ground this truck hit the rear fender, coming right at me. It was so close to me it scared me to death--the big wheels were just right at me because it hit the fender, and when he hit the car it knocked the door back against my back, knocked me down and broke my glasses. I commenced screaming. I screamed and screamed and he stopped. When he stopped his truck wheel was under my fender and he went back around and got in his truck and pulled it out. Well, that let the car down, like that, and I got out from under there. I was just right at it, just almost death. The extent of the injury to my person was for nearly two months I could hardly get around the house and when it is raining I can hardly stand at all. Right now in my back--I knew I was hurt there but didn't think I was hurt so bad until I got home and sat down, then I could not get up and all that night I got worse and worse, and they went to putting hot pads on my back and hot water bottles, and I had a hot pad, the wire was broken and I was scared to put it in the bed with me so I put hot bottles on me and hot pads and I never slept none that night and two or three days I couldn't walk across the floor hardly--on account of my back and my leg was hurting so. I was pretty sick and could not sleep for several days. After I called that man, Mr. Brannen came out and I don't recall just how many days it was after that but three or four. He came out and introduced himself and I said 'You most had my name' and he spelled his and I told him 'No,' and I asked him what he wanted and he told me who he was, said he was there to represent the truck line that hit me and I said 'Well, you just as well go, then, because they have notified me twice now that I wasn't going to get anything, they wasn't going to fix my car,' and I said 'My car is what I am anxious about and my glasses,' and he said 'Well, now, just wait a minute,' he says 'Them people out there '--of course he told me not to say that about them but they had told me so much.
"Well, the adjuster told me that he was sent out to see if he could settle the case for me and I says, 'Well, I have been informed three times by them that they wasn't going to--that I was on their property,' and I said 'You needn't come here and bother me, I am sick. I don't want to hear about it.' And he says 'Well, just wait a minute--they have got nothing to do with it, it's me and you now,' and I sat down and listened at him and he told me--he asked me to tell what occurred and I did and so he says 'Well, I am here to settle with you or give you a hundred dollars to fix your car, get you a new fender and fix your glasses.' I says 'What about my doctor bills if I have to have one? I am just using home remedies,' and I says 'They are not helping me one bit in the world.' He says 'That's all I can do; I am sorry for you but I can't do no more--that's all they require me to do.' He said he couldn't do any more. The first time he come he said he had just come to try to settle it with me and that he worked for that company and that they was all-right folks and they would do the right thing by me, and so we couldn't agree until I seen what the doctor's bills was going to be if I had one. So the second time he come he just got more familiar with me about it and everything and wanted to talk to me to settle if I could because I was on the other property and wouldn't get anything and I had just better settle with him. He said I was on the other man's property, and said I had better settle with them--I wouldn't get anything. He says 'Take that little bit, it is better than nothing. That will fix your car and your glasses.' I kept crying and all with him, and he says 'Well, I can't do no more than that--that's all.' He says 'That's the best I can do', and he started out and then he finally said 'I have got the right, if I think enough of you, to raise it $25' and he says 'And I will give you $25 more.' So I said 'Suppose you come back again and let me study it over because I am getting worse in my back and I may have a doctor's bill.' And so we left it at that; I agreed then to settle with him at that. I agreed to settle for $125. I did sign the release at that time. I didn't know if I did but my husband said I did and I reckon I must have or they wouldn't have paid me nothing. I was in pain at the time; I couldn't sit in there and talk with him; in fact they had to bring me in by my arm from the bed to talk with him. I got to crying when he says that's all I would get out of it and I says 'Then it's not much use to fool with it at all because that wouldn't pay no doctor's bill, no medicine and nothing else.' And he talked me out of it by telling me that I was on their property and I couldn't get nothing. I says 'I was on the sidewalk,' and he said 'Well, they called it their property and just as well sign it if you want anything.' So I signed it; my husband said I did. I just didn't remember even signing it, I was in such pain. I didn't get any money at the time.
"Well, he went off and was to come back to see me the next day and bring me a check. Well, he didn't do it and it was about a week or so later after that, maybe a little longer; well, I got in an awful fix, I couldn't get up at all, had the doctor at 7 o'clock that morning. I got up and called Mr. Brannen at his home at Jonesboro and told him that--I said 'I told you when you was here that you wasn't going to give me nothing or fix my car.' And he says 'Ain't they sent you that voucher yet?' I said 'No.' He says 'I will be right up there and see about it.' So he come on that day and brought it out there. The day that I called him, he brought it that same day. I called him soon that morning and he went to town, he said he was going to town. When he come back out he says 'I went up there and found that they were out of'--I don't know what you call it, I thought he was out of checks or something, but he says 'They hadn't sent it out to you and I brought it to you.' I says 'You needn't bring it now because I am not going to take it.' I says 'I refuse to take it.' I says 'Now my doctor bills are going to be way up yonder, I am still not well, I don't know how long I will be injured.' And I turned it down; and he says 'Mrs. Branan, I will tell you something if you won't give me away.' I says 'I won't.' He says 'You just hold that check and don't cash it and get you a lawyer and he will get you something out of it, but don't give me away; I am sorry I ever got you to settle it.' He says 'I studied about it all night long after you called me.' So now that's about all I can say about it. During the first and second time Mr. Brannen came I was in great pain. The kind of pain I was in--they were in my back and running up my back and side, sometimes, and all down in here. I didn't have any pains before I was hurt. I have always been a good strong woman, worked in the field, and was all right. Never had no sickness.
"Mr. Brannen brought the check when he came to see me the third time. I think he brought it then. He said they had it either in a pigeon-hole in the desk, or something, and thought it was mailed out. Mr. Brannen stated that if at a later time I had more doctor's bills to hold it up, not to give him away, he would lose his job, but to hold it up and then when I got through and it was all over maybe a lawyer could get me more out of it or pay enough to pay my doctor bills. He said if I signed the check, if I cashed it, that would release everything. He said if I didn't cash it, it wouldn't. If I signed the check and got it cashed 'that releases the negro and everything' and says 'I just advise you to hold it up until you see a lawyer.' I was 85 in April. The first time the adjuster came he wrote down a statement as to how I contended the accident occurred. I can't see to write a thing. No, I ain't got no glasses; I never got none since then and they are trying to take the cataract off my eye. So I can't read nothing. I got a pair of glasses at Grady Hospital but they didn't fit and I can't read through them. I can't see these documents well enough to see whether they bear my signature. Yes, that is my signature. That is my signature on both pages there on the statement. Well, the night I gave him the statement, I just can't remember that. I tell you I couldn't hardly sit up and I didn't want to see him at the start. I called the adjuster because he promised to send a check and he didn't do it. I called him to find out why I hadn't got the check. No, I just called him to tell him I was really mad at him, that was one thing, I called him to tell him I knew he wasn't telling a straight tale or he wouldn't have come there and got me to sign that because he promised to come back with a check. I don't remember whether it was night or morning that I called him but he came right out and brought it and when he came I don't remember whether it was night I called him or morning. But I called him at his residence. He said he would be right up with it and I told him he needn't bother about it because I wasn't going to accept it. That was his last visit. He has been to my house a good number of times since then. He and his wife and children come out to see how I was getting along. My memory is better now that it was when my depositions were taken on May 12, 1954. I think it is better now. Well, I am better in my back and all. I was suffering then and I don't know what hardly was going on. I remember saying, in answer to a question 'Do you think he--referring to Mr. Brannen--misrepresented anything to you as far as you personally know?' that I didn't know that he did. I can't say that he did. He seemed to be very nice about it. I didn't see a thing. Well, he did seem to be all right until he got up and told me that--not to cash the check; that he was sorry he got me to take the check. You didn't ask me that when you examined me in 1954. You might have asked me what went on upon each of the visits of Mr. Brannen to me, first, second and third. I told you then in substance the same thing about these visits that I have told you here today. I just can't get what you are saying [that is, she did not understand his question.] I remember when you were out at my house. I don't think I have told you a different story about it. I don't know--I hardly know what you asked me when you were out there.
"I don't know whether that is the check Mr. Brannen gave me or not. I gave it to Mr. Wimberly. I live further south than the White Truck Terminal Line and I was coming north on Jonesboro Road--that's more or less towards town. And as I approached the White Truck Lines yard and terminal there, I saw a truck-trailer in which there was someone sitting there under the driver's wheel in the driver's seat. The truck was headed south and I was coming from the south. He was looking me right in the face. He was on the sidewalk--his motor was. I assumed it was a sidewalk. People go along there and park on it when they are stopping for laundry or anything; that's how come me to stop there. The trucking company have got a drive-in for both ways to their lot. I was parked between those areas. I was parked between the driveways on the sidewalk. My husband was driving my automobile when we passed the cab part of the truck sitting there with somebody in it. My husband passed it. We was parked on the edge of the sidewalk and he was headed right down here and when he backed around he just come right around to my car. I approached from the south going north. The White Trucking line is situated on the right coming to Atlanta. The driver of the tractor-trailer was headed in an opposite direction from the way I was headed. He was to my right. The trailer part was right along on the side of the sidewalk. My husband did not drive past the cab of the tractor-trailer and alongside the trailer part. No, he just passed the trailer, the cab. We were not quite alongside the trailer. The back end of the trailer was turned in a little. I don't know that my husband knew that the driver was in the tractor-trailer because I was on the right side and he was driving and, naturally, he would have been watching where he was going because he went in about what you would call four miles an hour and he turned in there and I don't think he would have had time to have seen that. I wasn't looking for that man. He was just sitting there. I started getting out of my car at the right front door. The driver went to backing and jack-knifing his trailer and I think he meant to put the trailer in back there where there was nothing parked. I think it cost $57 to get my car fixed. It cost $47 to replace my eyeglasses. I bought some glasses from a man on Broad Street, I cannot remember his name. My doctor's bill was forty-some-odd dollars; my medicine bill was twelve. I didn't offer to show the bills to anybody; I haven't seen anybody to show them to but I have them. I still owe the doctor $6, I think, on the bill and owe $10 yet on the glasses. I never seen a soul on the scene when we got up there--we was the only ones there. Yes, there was nobody on the street, nobody there. I suffered pain about a month and a half; I still suffer from them when it is rainy weather."
The defendant Clayton testified as a witness in his own behalf: "I have been driving about 14 years for LaGrange Truck Lines. On October 17 I had occasion to go to the White Truck Lines terminal on Jonesboro Road for the purpose of delivering a Bob White trailer. The LaGrange Truck Line had borrowed the trailer and completed the use for which it had been borrowed. When I was delivering the trailer I was going towards Lakewood. The terminal of the White Truck Line was on the left-hand side of the street and sat a good piece back from the street. When I reached the terminal I stopped first thing to look at the place I had to back into when a car was coming up the street and I was looking at it. It was coming from the opposite direction from Lakewood. It was a Hudson automobile. When I brought the trailer to a stop and was preparing to back it into the lot I was all the way off of the street, sitting parallel or at an angle with the street. Well, I was sitting kind of in an angle because I had to look back in the hole. You always had to keep the rear end where you can see it because that is the onliest way you can back to keep the car end in view from the left side through your mirror. When I saw the car it was coming up the street and it went by, and I went to back in. About the time I got the trailer broke good I heard somebody holler. Well, backing in, the terminal was right over this side, I was backing in like that. My trailer was sitting like that. Well, the tractor wheel caught by the tractor being a little bit up under the trailer. The trailer caught close to the top of her car and bent it just a little bit and the tractor wheel caught it and pushed her car back just about that much before I ever stopped. I didn't push it over twelve inches. After I had the accident I called my boss man, Mr. Boone, and the unit was still in the same condition that it was in when the accident happened at the time Mr. Boone arrived. After the Hudson had passed the trailer, I would lose sight of it on my side because the trailer would have me blind. At the time I stopped the tractor-trailer I couldn't directly say how far it was from the street. The lot was clear; there was nothing out there for me to hear. Everything was clear of the street. I was watching the space I was backing into. Mrs. Branan's car was clear of the curbing. I don't know how far the left side of her car was to the curb--no more than it was clear. I imagine that the trailer part of the truck I was driving was 28 or probably 30 feet long--something like that. It was a good piece from the street to the building where I was backing this truck. It is not altogether true that I would have to pull almost parallel in order to jack-knife the truck straight, because you have got plenty of room out there. You can make a circle in like that. When you make a circle like that you have automatically got your trailer out there so you can see it to back in. We always look behind us to see that nothing is there to hit. I locate on this occasion, and everything was clear when I looked back. I didn't have anybody else out there to look back. Well, the way it was, when I pulled in there, there was nothing behind me; and I looked and their car came by and I backed because it was clear. There wasn't no cars or trucks or nothing out there at the time. I imagine I backed about as far as from here to the table before I heard someone scream. That is about 10 feet. I backed about 10 feet and hit the car."
Jesse L. Boone testified in behalf of the defendants that he was employed by the LaGrange Truck Lines on the date of the collision and went to the scene of the collision; that the vehicles had not been moved; he described the location of the automobiles; the tractor-trailer was being returned to the White Truck Lines; the driver had pulled down the Jonesboro Road to back the unit into the backing dock where parked trailers were left so he backed up there. "This lady and her husband, I imagine it was, they had pulled up in and hit the tractor, hit the front of the tractor with their automobile. The tractor and trailer was in a jack-knife backed to the dock and was five or six feet from the road, and these people had pulled up in and hit the front of the tractor. I saw the car where it had hit the tractor-trailer, hit our tractor. The car was sitting on the lot; that lot is constantly used by tractors and trailers coming in and out. It is used for a loading dock. The trailer was being returned to the lot. The tractor belonged to the LaGrange Truck Lines. The only conversation I had with the plaintiff, she said it was her fault and she wanted to go ahead and make a telephone call and leave. She said they were going to call the hospital, I believe it was."
The claim adjuster testified at length, denying substantially all of the plaintiff's testimony in reference to the transaction with him. He stated that the settlement with her was fair and that she thoroughly understood that the draft he tendered to her was accepted in full satisfaction of all claim for damages she had against either or both of the defendants.
The following documents introduced by the defendants were admitted in evidence:
"Claim Draft. Carolina Casualty Insurance Company, 52509
Burlington, North Carolina City State Date
Security National Bank Pay to the order of R. C. Branan and Mattie E. Branan
One-hundred twenty-five----and----No/100 DOLLARS $125.00
Number Number Accident (B.I. or P.D.) (B.I. or P.D.) Name of Assured Name of Claimant
s/Joe B. Brewer
Authorized Signature
Release and Settlement of Claim.
For the sole consideration of one hundred, twenty-five and no/100 Dollars, to me/us in hand paid, the receipt of which is hereby acknowledged, I/we Mattie E. Branan and R. C. Branan, Releasors, being over 21 years of age, do hereby release and forever discharge LaGrange Truck Lines and Marvin Clayton, Releasees, and all other persons, firms or corporations from any and all claims, demands, rights, actions or causes of action on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen personal injuries (and consequences thereof, including death) and property damage resulting or to result from an accident that occurred on or about the 17th day of Oct. 1953, and do hereby for myself/ourselves, my/our heirs, executors, administrators, successors, assigns and next of kin covenant to indemnify and save harmless the said above-named Releasees and said persons, firms or corporations above-referred to, from all claims, demands, costs, loss of services, expenses, and compensation on account of or in any way growing out of said accident or its results both to person and property.
It is expressly understood and agreed that the acceptance of the said above amount is in full accord and satisfaction of a disputed claim, and that the payment of the said above amount is not an admission of liability.
In witness whereof, I/we have hereunto set my/our hand and seal this 26th day of Oct. 1953.
Signature s/Mattie E. Branan (L.S.)
s/R. C. Branan (L.S.)
Certificate of Witnesses
We certify that this release was signed in our presence by the above who acknowledged that he/they understood it fully.
Witness: s/W. L. Brannen
Oct. 26th, 1953.
My name is Mattie E. Branan. I am 76 years of age. I live at 3253 Browns Mill Road, Atlanta, Ga.
On Oct. 17th I was a passenger in a 1953 Hudson automobile driven by my husband, R. C. Branan. We were going north on Jonesboro Road and as we got to White Truck Lines, I decided to use the telephone to call the hospital to see if my husband's nephew had left the hospital yet. We pulled the car off the street on what would be the sidewalk. When we pulled off the street there were some more trucks and cars parked on this lot, and also there was a truck with a large trailer hooked to it that was sitting on the lot. This truck was not moving at the time we parked. As I started to get out of the car, and had just got one foot on the ground when we were hit from the rear by this large truck, the truck pushed us out in the street and made the car door hit my back, knocking my glasses off and breaking them.
We were told by a Mr. Lyner to go on and not call the police. And for us to call him on Monday; when we got home the police came and made out a report.
I have read the statement on two pages and to the best of my knowledge it is true.
Signed: Mattie E. Branan
s/W. L. Brannen"
At the close of the testimony the trial judge directed a verdict in favor of the defendants, to which ruling the plaintiff excepted and brought the case here for review.
For the sake of convenience we shall refer to the plaintiff in error, Mrs. Branan, as the plaintiff, and to LaGrange Truck Lines, Inc., and Marvin Clayton as the defendants.
The sole question for consideration by this court is whether the judgment of the trial court directing a verdict for the defendants should be affirmed or reversed.
The petition as finally amended set forth a cause of action against the defendants for injuries to the plaintiff's person and damage to her property by the commission of specified acts of negligence on the part of the defendant Clayton whose negligence was imputable to the defendant LaGrange Truck Lines, Inc.
The allegations of the petition went further than setting out the cause of action upon which the plaintiff relied for recovery, and undertook to anticipate and avoid the defense that the defendants' liability had been extinguished by a settlement between the parties, effected by the plaintiff's signing a release of liability and accepting a draft in satisfaction of her claim for damages.
The rule is well established that, except in cases brought by a railroad employee for injuries caused by the negligence of a fellow servant, the plaintiff is not required to anticipate and negative possible defenses that may be urged. Roadway Express, Inc., v. Jackson, 77 Ga. App. 341 (2) (48 S. E. 2d 691). If the petition undertakes to negative a defense that might be urged by the defendant, the petition is subject to general demurrer if the facts alleged are not sufficient to avoid such defense. Columbian &c. Ins. Co. v. Carter, 58 Ga. App. 150 (1) (197 S. E. 925). If the matters pleaded in avoidance of the defense, the existence of which is disclosed by the petition, are insufficient for the purpose, the effect is to negative the plaintiff's right of recovery. Swofford v. Glaze, 206 Ga. 574 (57 S. E. 2d 823).
The petition was demurred to on several grounds. Each of them is bottomed on the proposition that the petition was insufficient to set forth a cause of action, or failed to negative the defense it anticipated. These matters were decided adversely to the defendants by the judgment overruling their demurrers, to which judgment no exception was taken. The judgment became the law of the case. McKenzie v. Perdue, 67 Ga. App. 202, 212 (19 S. E. 2d 765). It was thus finally adjudicated that the petition was both sufficient to set forth a cause of action and to avoid the defense that the plaintiff had relinquished her right of action.
All, then, that remained for the plaintiff to do in order to be entitled to recover was to prove the allegations of the petition. Pierpont Mfg. Co. v. Mayor &c. of Savannah, 153 Ga. 455 (1, 2) (112 S. E. 462). The plaintiff offered no evidence except her own testimony in support of the allegations of her petition. However, the evidence given by her was plausible and not so contradictory as to deprive it of its probative value. It was disputed but not conclusively refuted or disproved by the evidence adduced by the defendants, and was sufficient to support every material allegation of the petition. Consequently, every allegation of the petition, except those admitted by the answer, became one of fact for solution by the jury.
The defendants invoke the rule that a party testifying in his own behalf, if there are material conflicts in his testimony, is not entitled to recover unless that testimony least favorable to his contention is of such character as to authorize recovery. Clark v. Calhoun Nat. Bank, 53 Ga. App. 691, 694 (187 S. E. 304). The contention that the rule is applicable to the plaintiff's testimony is based on the fact that when the plaintiff's depositions were taken on May 12, 1954, she testified that a claims adjuster, who represented the defendants, had made no representations to her that to her personal knowledge were untrue, and when she later testified on the trial of the case she attributed to the claims adjuster certain statements that she contended were intended to induce her to sign the release of the defendants' liability to her and to persuade her to take into her possession a certain draft tendered by the claims adjuster and which purported to be in full satisfaction of her claim for damages. These statements were: that she could not recover damages for the reason that she was on the property of another at the time she was injured; and that if she was on the public sidewalk she would still not be entitled to recover because the owner of the lot claimed dominion over the sidewalk, and that if she took the draft into her possession and did not cash it her right to institute an action against the defendants would not be affected.
The evidence presented by the plaintiff was not self-contradictory or equivocal so as to require it to be construed most strongly against her. The depositions referred to in the opinion were taken prior to the trial of the case and although they might tend to impeach the plaintiff's testimony they would not have the effect of requiring, as a matter of law, that her testimony be disregarded. See Swift & Co. v. Hall, 94 Ga. App. 239 (94 S. E. 2d 145). In order to require as a matter of law that a party's testimony be construed most strongly against her because it is contradictory or equivocal, it must be testimony presented by the party on the trial of the case and not testimony adduced at some other time and place which is introduced on the trial merely for the purpose of impeachment. In the present case the general demurrers filed by the defendant to the plaintiff's petition were overruled and not excepted to, and the plaintiff made out her case as laid. Therefore, a question for the jury was presented, and the trial court erred in directing a verdict for the defendants.
Moreover, in view of the plaintiff's testimony that she was in such pain at the time the "release" was signed that she didn't remember signing it and the only reason she knew she signed it was that her husband told her she did would have authorized the jury to find for the plaintiff as to the anticipated defense pleaded by her.
The plaintiff's testimony, while containing some inconsistencies, was, as a whole, plain, plausible and consistent. We have not overlooked some inconsistencies, most of which were minor for the most part and did not concern material matters. But despite the discrepancies referred to, the plaintiff's testimony as a whole was understandable and did not present conflicting versions of the manner in which she was injured or repugnant accounts of the representations made by the claims adjuster to induce her to sign the release and take the draft tendered by him into her physical possession.
The rule of practice announced in the Clark case, supra, and in many other cases, like all other matters of procedure, must be given reasonable construction and practical application. The mere fact that the party's testimony is inconsistent and contradictory in reference to vital issues does not necessarily divest it of probative value. The rule is applicable only when the party's testimony presents such contrary and repugnant accounts of the same matter that to accept the one as true compels the rejection of the other as false. And even then, if the party witness's testimony least favorable to his case supports the cause of action as laid in the petition, it is not as a matter of law precluded from prevailing in the case. The question of weight and credit to be given his evidence is for the jury.
It is not necessary, but perhaps well, to observe that the plaintiff was a very old lady, four score or more years old. The same precision of judgment and clarity of memory, however, which would normally be expected of younger persons could hardly have been required of her. Age takes its toll of physical and mental strength and casts its long shadows across the way of memory. She was easily confused as to details, but testified with remarkable clarity for one so old. As authority for the proposition that her age and mental state should be considered, see Central of Ga. R. Co v. Poole, 25 Ga. App. 58 (2) (102 S. E. 461).
It must also be considered that the plaintiff explained the failure of her testimony when examined on the trial to coincide in detail with that given by her when examined by depositions on May 12, 1954. She explained that she was in great pain when her depositions were taken and scarcely knew what was transpiring; whereas not being in such stress at the time of the trial nearly two years later, her memory was clearer. She also stated that when her depositions were taken her attention was not directed to, nor was she examined as to, her transactions with the claim adjuster. In the case of Central of Ga. R. Co. v. Poole, supra, (headnote 2) it was held: "While it is a well-settled rule that where the evidence of a plaintiff or a defendant is contradictory within itself, vague, or equivocal, it must be construed most strongly against him (Watkins v. Woodbery, 24 Ga. App. 80, 100 S. E. 34 [5]), this principle of law does not govern or control this case under its facts. While in one instance the plaintiff swore on cross-examination, 'I don't know what struck me,' every fact and every circumstance testified to both by the plaintiff and by every other witness tends abundantly to show that the plaintiff was struck at night by a backing freight car, and was, as he says, 'dragged by the car' along the track a considerable distance, mashing his foot to such an extent as to necessitate its amputation. The one instance in which he used the words first quoted, when construed in connection with the entire evidence in the case, including the plaintiff's own evidence, and with especial reference to the plaintiff's evidence as given in immediate connection with the expression quoted, must necessarily be taken to mean that he did not know what hit him in the sense that he did not directly see the impact at the time it unexpectedly occurred. The same reasoning applies to the plaintiff's expression, in answer to a propounded question, 'The one next to the depot was the side-track upon which I stood.' The plaintiff had specifically fixed his position at the time of the accident as being one foot or two feet from the side-track,' and in answer to another question stated, 'I was nearer to the track than I was to the door.' The answer first quoted must, therefore, in fairness, be taken to have special reference to which track was being testified about, rather than to his exact position in reference thereto. The plaintiff repeatedly testified in substance that he was standing somewhere near in front of the waiting-room. The fact that while testifying to this fact, and insisting that such was the case, he may have failed to designate such position correctly by indicating it with a cross-mark on a rather small photograph of the locality, when requested to do so by the defendant's counsel, need not necessarily bring the evidence of the plaintiff within the application of the legal rule above stated, especially as the plaintiff, an old man, protested his inability to thus correctly designate his position, for the reason that he could not well see the photograph."
The trial judge erred in directing the verdict in favor of the defendants.
Headnotes 5 and 6 need no elaboration.
Judgment reversed. Felton, C. J., and Nichols, J., concur.
A. Walton Nall, Nall, Sterne, Miller, Cadenhead & Dennis, William M. Pate, contra.
B. M. Wimberly, for plaintiff in error.
Saturday May 23 02:16 EDT

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